Industrial Communications Systems, Inc. v. Pacific Tel. & Tel. Co.

• Decision Date: 04 October 1974
• Docket Number: No. 73-1032,73-1032
• Citation: 505 F.2d 152
• Parties: 1974-2 Trade Cases 75,291 INDUSTRIAL COMMUNICATIONS SYSTEMS, INC., and Intrastate Radio Telephone, Inc., of Los Angeles, Plaintiffs-Appellants, v. PACIFIC TELEPHONE & TELEGRAPH COMPANY and General Telephone Company of California, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 152

505 F.2d 152

1974-2 Trade Cases 75,291

INDUSTRIAL COMMUNICATIONS SYSTEMS, INC., and Intrastate Radio Telephone, Inc., of Los Angeles, Plaintiffs-Appellants, v. PACIFIC TELEPHONE & TELEGRAPH COMPANY and General Telephone Company of California, Defendants-Appellees.

No. 73-1032.

United States Court of Appeals, Ninth Circuit.

Oct. 4, 1974.

James G. Rourke, of Rourke & Holbrook, Santa Ana, Cal., for plaintiffs-appellants.

Anthonie M. Voogd, of Lawler, Felix & Hall, Charles W. Bender, of O'Melveny & Myers, Los Angeles, Cal., for defendants-appellees.

Before CARTER and HUFSTEDLER, Circuit Judges, and SCHNACKE, ^* District Judge.

OPINION

JAMES M. CARTER, Circuit Judge.

This is an appeal from the Order of the district court, dismissing the complaint of appellants Industrial Communications Systems, Inc. ('Industrial') and Intrastate Radio Telephone, Inc. of Los Angeles ('Radio') on the ground that it failed to present a justiciable case or controversy. Appellees Pacific Telephone and Telegraph Company ('Pacific') and General Telephone Company of California ('General') seek to sustain the Order of dismissal on three grounds: 1) non-justiciability; 2) the complaint failed to state a claim upon which relief could be granted; and 3) the California Public Utilities Commission ('PUC') has primary jurisdiction of the dispute. Although we conclude that the case was justiciable and the complaint stated a claim upon which relief could be granted, the federal court case should have been stayed pending the outcome of the PUC proceedings under the doctrine of primary jurisdiction. We reverse and remand with instructions that the district court stay this case pending the outcome of the PUC proceedings.

FACTS

Industrial and Radio are engaged in the one-way signaling business in the Los Angeles area. One-way signaling is a means for informing a person while he is away from his telephone that someone is attempting to contact him. A subscriber to a signaling service is assigned a number and a small radio receiver that he carries with him. To contact the subscriber, one telephones the signaling utility, waits for a tone, and then dials the subscriber's number. The utility's transmitter emits a radio beam keyed to that subscriber's receiver and the receiver emits a 'beep' tone. Thus informed that someone is attempting to contact him, the subscriber telephones a predetermined contact point, such as his office, and obtains the message. The basic technical equipment required to provide one-way radio signaling service is the radio transmitter and the means to connect it with the telephone network.

Industrial and Radio pay to Pacific and General a monthly charge for this dial interconnection under contracts terminable by either party on thirty days' notice. Industrial and Radio compete with each other for one-way signaling service subscribers and are also subject to such competition from other radio common carriers in the Los Angeles area.

On November 1, 1971 the FCC granted construction permits to both Pacific and General to build radio transmitters to be used for providing one-way radio signaling service in the Los Angeles area. These permits authorized the Construction by both Pacific and General of facilities to 'be operated in coordination' with one another on the same frequency.

On June 1 and June 2, 1972, respectively, General and Pacific each filed an 'Advice Letter' with the PUC. These Advice Letters presented revised tariff sheets to the PUC containing information and rates covering the proposed institution of one-way signaling service in Los Angeles. On June 23, 1972, General and Pacific each applied to the FCC for a radio license to operate the transmitters they had built pursuant to the construction permits issued on November 1, 1971.

On June 21, 1972, Industrial requested the FCC to withhold any action on the radio license applications of General and Pacific, and on June 26, 1972, Industrial and Radio filed a complaint with the PUC challenging the tariffs filed with Pacific's and General's Advice Letters. The complaint alleged in pertinent part that the rates and conditions of service General and Pacific sought to establish were unfair, anticompetitive, and constituted an unlawful contract, combination and conspiracy in restraint of trade. It was further alleged that Industrial and Radio would suffer prompt and irreparable injury if the proposed tariffs were permitted to become effective. The following day, the PUC suspended the tariffs proposed by General and Pacific and commenced an investigation to determine the reasonableness and lawfulness of the tariffs.

The complaint proceeding and the PUC investigation were consolidated and, on November 10, 1972, a full PUC hearing was commenced, with one of the issues to be determined stated as follows:

'Would it be in the public interest to permit the proposed tariffs filed by Pacific and General to become effective, public interest being deemed to include but not limited to relevant consideration of alleged anti-competitive impact of such action.'

On December 1, 1972, the hearing examiner adjourned the hearings to a future date to be set by the Commission.

Industrial and Radio also filed their complaint in the district court, alleging that Pacific and General were combining, conspiring, and threatening to commit violations of the antitrust laws by proposing to enter the one-way radio signaling business in Los Angeles. The complaint further alleged that their one-way signaling businesses would suffer serious and irreparable injury unless General and Pacific were enjoined from entering the market.

Upon motion by Pacific and General, the district court dismissed the complaint on the ground that, since the PUC had not yet approved the defendants' tariffs nor had the FCC granted the defendants the requisite radio licenses, 'the dispute as presented is, therefore, hypothetical and abstract. It lacks sufficient immediacy and reality to warrant at this time, possible disharmony between this Court and the agencies charged with the primary regulation of this area of competition.' This appeal ensued.

I. THE CASE IS JUSTICIABLE

The United States Constitution limits the jurisdiction of the federal courts to the adjudication of 'cases or controversies.' U.S.Const., Art. III, 2. This limitation bars federal courts from giving advisory opinions or from considering hypothetical cases. See Aetna Life Ins. Co. v. Haworth,300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617 (1937). In the usual case, then, acts which merely threaten injury to one or several parties will not support the finding of a case or controversy sufficient to give the courts jurisdiction.

However, the authorizing statute in this case, Section 16 of the Clayton Act, 15 U.S.C. 26, provides aggrieved parties with a suit for 'injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws.' The 'relief against threatened conduct that will cause loss or damage' is to be granted 'by courts of equity, under the rules governing such proceedings.'

The Supreme Court, interpreting Section 16 of the Clayton Act, has specifically held that a party need not prove the fact of injury in order to be entitled to injunctive relief against parties conspiring to violate the antitrust laws. Zenith Corp. v. Hazeltine, 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969). Rather, Section 16 'authorizes injunctive relief upon the demonstration of 'threatened' injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury . . . he need only demonstrate a significant threat of injury from an impending violation of the antitrust trust laws . . ..' Id. at 130, 89 S.Ct. at 1580.

Industrial and Radio have properly alleged a combination by Pacific and General to enter the one-way radio signalling business in Los Angeles, in violation of the antitrust laws. They have also alleged that such entry into the market would cause them serious and irreparable harm. Because the dismissal came at the pleading stage of the proceedings, they have had no opportunity to prove the acts threatening violation of the antitrust laws. ¹ We find, and Zenith Corp. v. Hazeltine, supra, so requires, that the plaintiffs have demonstrated 'a significant threat of injury from an impending violation of the antitrust laws.' The dispute is therefore justiciable.

Our finding that the plaintiffs have properly alleged an impending violation of the antitrust laws which, if proved, would entitle them to equitable relief, likewise mandates the conclusion that the complaint states a claim upon which relief can be granted. Whether the violation alleged can be proved is not relevant at this stage of the proceedings.

II. THE PUC HAS PRIMARY JURISDICTION OF THE DISPUTE

Although the district court dismissed the complaint as non-justiciable, it also noted that determination of the dispute could result in 'disharmony between this Court and the agencies charged with the primary regulation of this area of competition.' Pacific and General contend on appeal, as they did below, that if the dismissal was erroneous, the district court proceedings should at least have been stayed pending proceedings by the PUC which has primary jurisdiction of this dispute. We agree.

There are in reality two prongs to the contention that the PUC or FCC, not the federal courts, has jurisdiction over this case. First, Pacific and General contend that the extensive regulation of telephone companies by the FCC under the Federal Communications Act, 47 U.S.C. 151 et seq., precludes any antitrust actions against them. We reject this contention, both because our conclusion that the PUC has primary jurisdiction warranting a stay in this case renders a broader holding superfluous, and because the relevant case law would appear to indicate that telephone...